The Jurisprudence of Post Facto Permission in Indian Law

The Evolving Jurisprudence of Post Facto Permission in Indian Law: A Critical Analysis

Introduction

The concept of post facto permission, or the granting of approval for an act already undertaken without prior authorization, occupies a complex and often contentious space within the Indian legal landscape. It represents a critical juncture where the imperative of upholding statutory compliance and regulatory discipline intersects with considerations of pragmatism, equity, and the avoidance of disproportionate hardship. This article undertakes a comprehensive analysis of the legal principles governing post facto permission in India, drawing upon key judicial pronouncements and statutory frameworks. It examines the varying judicial approaches across different domains, particularly environmental law and construction regulation, and explores the underlying legal doctrines that shape the discourse on this subject. The central inquiry revolves around the extent to which Indian law accommodates such retrospective validation and the conditions under which it may be deemed permissible or impermissible.

Conceptual Framework: 'Permission', 'Approval', and Ratification

The permissibility of post facto authorization often hinges on the precise terminology employed in the governing statute – whether it mandates "permission," "approval," or "prior approval." The Supreme Court, in Sunny Abraham v. Union Of India And Another (2021)[1], elucidated this distinction, observing that "Ordinarily, the difference between approval and permission is that in the first case the action holds good until it is disapproved, while in the other case it does not become effective until permission is obtained. But permission subsequently granted may validate the previous Act..." This echoes the sentiment in Life Insurance Corporation Of India v. Escorts Ltd. And Others (1985)[2], where the Court noted that "permission subsequently granted may validate the previous Act." The Court in Sunny Abraham (2021) further differentiated statutory phrases, stating, "If the words used were ‘with the permission of the State Government’, then without the permission of the State Government the Executive council of the University could not determine the terms and conditions of service... Similarly, if the words used were ‘with the prior approval of the State Government’, the Executive Council... could not determine the terms... without first obtaining the approval... But since the words used are ‘with the approval of the State Government’, the Executive Council... could determine the terms... and obtain the approval... subsequently..."[1]

The principle of ratification, which involves making an already done act valid retrospectively, is also pertinent. As observed in Harakchand Misirimal Solanki v. Collector (2008)[3], "ratification means making valid an act, already done and that the subsequent ratification of an act already done is equivalent to prior authority to perform such an act." This was reiterated in MR. IMRAN SULEMAN QURESHI v. MUNICIPAL CORPORATION OF GREATER MUMBAI AND 5 ORS. (2022)[4], citing Graphite India Ltd. v. Durgapur Projects Ltd., where it was noted that subsequent approval can validate previous acts done in anticipation.[4] However, the applicability of ratification can be contested if post facto sanction is deemed contrary to the scheme of the specific Act.[3]

The rule against retrospective operation of statutes is generally a rule of interpretation aimed at preventing interference with vested rights. In LIC v. Escorts Ltd. (1985), the Supreme Court cautioned against importing this rule into situations where no vested rights are involved, stating it would be "to give statutory status to a rule of interpretation forgetting the reason for a rule."[2]

Post Facto Permission in Environmental Law

Environmental law presents a significant arena for debates on post facto clearances. The judiciary has generally adopted a cautious approach, emphasizing the importance of prior environmental impact assessment (EIA) and clearance as mandated by laws like the Environment (Protection) Act, 1986, and its attendant notifications.

In Alembic Pharmaceuticals Ltd. v. Rohit Prajapati And Others (2020)[5], the Supreme Court held that ex post facto environmental clearances are "against environmental jurisprudence" and contrary to the precautionary principle. The Court invalidated a Ministry of Environment and Forests (MoEF) circular that permitted such clearances. However, demonstrating a balancing act, instead of ordering immediate closure of the industrial units that had operated without prior clearance, the Court directed them to deposit compensation for environmental restoration, thereby applying the 'polluter pays' principle.[5]

This nuanced stance was further developed in D. Swamy v. Karnataka State Pollution Control Board (2022)[6], where the Supreme Court, while reiterating that ex post facto environmental clearances (ECs) are "generally discouraged," clarified that they are "not categorically prohibited." Such clearances can be granted in "exceptional circumstances," ensuring compliance with environmental norms and considering economic and social ramifications. The Court distinguished valid statutory notifications, like Office Memorandum S.O. 804(E) dated 14 March 2017 (which provided a window for violators to apply for EC), from non-statutory circulars previously struck down.[6] This was affirmed in Electrosteel Steels Limited v. Union Of India And Others (2021)[7], where the Court emphasized the doctrine of proportionality, stating that while ex post facto ECs are disfavored, they can be permissible under stringent, justified circumstances, preferring remediation and compensation over outright closure of economically significant operations. The Court cited *Alembic Pharmaceuticals* and *Lafarge Umiam Mining (P) Ltd. v. Union Of India* (2011)[8], where the latter noted that such clearances are "scrutinized rigorously."[8]

However, the judiciary has also underscored the non-negotiability of compliance. In Common Cause v. Union Of India And Others (2017)[9], concerning illegal mining, the Supreme Court emphasized the non-retrospective application of EIA clearances and mandated strict adherence. Similarly, in Keystone Realtors Private Limited v. Anil V. Tharthare And Others (2019)[10], the Court stressed strict compliance with the EIA Notification, 2006, for project expansions, disallowing attempts to bypass procedural requirements for incremental expansions.

The overarching theme is a judicial endeavor to balance environmental protection with developmental imperatives, using principles like sustainable development, the precautionary principle, and the polluter pays principle to guide decisions on post facto clearances.[6, 7]

Post Facto Permission/Regularization in Construction and Land Use

In the realm of unauthorized constructions and land use violations, the judiciary has often adopted a stricter stance against post facto regularization, particularly for deliberate and egregious violations.

The Supreme Court in Esha Ekta Apartments Cooperative Housing Society Limited And Others v. Municipal Corporation Of Mumbai And Others (2013)[11] strongly affirmed the refusal to regularize unauthorized constructions that exceeded the sanctioned Floor Space Index (FSI). The Court emphasized the sanctity of urban planning laws and held that deliberate violations should not be legitimized, dismissing arguments that flat buyers unaware of violations should not be penalized.[11]

The Allahabad High Court in Vivek Srivastava v. Union Of India And Others (2005)[12] held that where constructions were made without "prior permission," post facto permission cannot be granted, and such constructions must be dismantled. The Court distinguished between "prior approval," where anything done without it is a nullity, and "approval," where subsequent rectification might be possible. It asserted that seeking sanction at a later stage cannot cure an initial defect if prior sanction was mandatory.[12] Similarly, the Bombay High Court in Fattechand Murlidhar Shop, Sitabuldi, Nagpur v. Shrikrishna Tejmalji Chandak (1984)[13] noted that where a statute requires permission *before* instituting a suit, no post facto permission can be granted.

However, some older judgments suggest a degree of discretion. The Gujarat High Court in Surat Borough Municipality v. Ishvarlal Manchharam Bachkaniwala (1972)[14] observed that in a given case, a Chief Officer might find that a construction made without necessary permission could be allowed to stand, and post facto permission might be granted to regularize it, provided the power is exercised justly and fairly, not arbitrarily.[14] The case of Himmatbhai Amrabhai Sagathiya v. State Of Gujarat (2010)[15] involved petitioners seeking post facto permission for non-agricultural use after having already converted the land use without prior permission, whose applications were rejected by the Collector, highlighting the challenges faced by violators.

Statutory Interpretation and Legislative Intent

The permissibility of post facto permission is fundamentally a matter of statutory interpretation. Courts meticulously examine the language of the relevant statute to discern legislative intent. As highlighted in Sunny Abraham (2021)[1] and Vivek Srivastava (2005)[12], the use of terms like "prior approval," "with the approval of," or "with the permission of" significantly influences the interpretation. The absence of "prior" may open a window for subsequent approval, but this is not an absolute rule.

In Hitesh Ramanlal Patel v. Sentinel Properties Pvt. Ltd. And Others (2019)[16], the Gujarat High Court considered arguments that the concept of post facto permission was out of place concerning Section 63 of the (likely) Bombay Tenancy and Agricultural Lands Act, suggesting that statutory provisions should not be tinkered with by introducing such a concept if not clearly envisaged.[16] This underscores the principle that post facto permission should not be read into a statute if it runs counter to its overall scheme and objectives, a point also noted in Harakchand Misirimal Solanki (2008).[3]

The context of the statute is also crucial. For instance, in Tarlok Chander v. The State Of Punjab And Others (1995)[17], the Punjab & Haryana High Court, dealing with reimbursement of medical expenses, found it harsh and inhuman to deny an ex post facto permission based on procedural grounds when a government servant faced a life-threatening situation, suggesting that welfare considerations can, in specific contexts, tilt the balance.[17]

Judicial Discretion and Balancing of Interests

While statutes provide the primary framework, judicial discretion plays a vital role in cases concerning post facto permission. Courts often engage in a delicate balancing act, weighing the need for strict legal compliance against factors such as irreversible actions, substantial investments, public interest, and the potential for disproportionate harm if an act is invalidated solely for want of prior permission.

The "exceptional circumstances" doctrine, as articulated in D. Swamy (2022)[6] for environmental clearances, allows for flexibility. The imposition of penalties or conditions, such as compensation under the 'polluter pays' principle (Alembic Pharmaceuticals (2020)[5], Electrosteel Steels (2021)[7]), often serves as a middle path, penalizing the lapse without necessarily nullifying the entire action or causing severe economic disruption.

The judiciary's approach in cases like Jamshedpur Cements Ltd. (In Liquidation), In Re v. Hi-Tech Chemicals P. Ltd. (2011)[18], citing Graphite India Ltd., shows a pragmatic tendency to regularize acts, especially where consideration has passed and rights have crystallized, provided such regularization is possible and not fundamentally against the statutory scheme. The court noted that "the attempt of the company court would be to regularise the act ... than to defeat it" and that "ex post facto sanction can be made and can relate back," though its effect differs case by case.[18]

Limitations and Concerns

Despite the pragmatic accommodations in certain circumstances, the grant of post facto permission is fraught with concerns. It carries the inherent risk of undermining the integrity of regulatory frameworks by creating an impression that compliance can be an afterthought. This could incentivize entities to bypass mandatory prior approval processes, hoping for subsequent regularization, potentially leading to a fait accompli situation where reversing the unauthorized act becomes difficult or impractical.

In environmental matters, post facto assessments may not accurately capture the baseline environmental conditions that existed before the activity commenced, making a true EIA challenging. Similarly, in urban planning, unauthorized constructions can strain civic infrastructure and compromise planned development, issues highlighted in Esha Ekta Apartments (2013).[11] Therefore, the judiciary remains vigilant, ensuring that post facto permission is not granted routinely but is reserved for genuinely exceptional cases where the law permits, and equity demands, such an outcome, often accompanied by stringent conditions or penalties.

Conclusion

The jurisprudence on post facto permission in India is nuanced and context-dependent. There is no universal rule either permitting or prohibiting such approvals. The outcome in each case turns on a careful interpretation of the specific statutory language, the nature of the act for which permission was required, the consequences of non-compliance, and a judicial balancing of competing interests including regulatory discipline, environmental protection, economic development, and individual hardship.

While the trend, particularly in environmental and construction law, leans towards stricter enforcement of prior approval requirements to prevent regulatory frameworks from being diluted, the courts have shown a willingness to permit post facto validation in exceptional circumstances, guided by principles of proportionality, ratification where applicable, and the overarching demands of justice. The distinction between "permission," "approval," and "prior approval" remains a critical determinant. As regulatory landscapes evolve, the debate over post facto permission will continue to be a significant feature of Indian administrative and public law, requiring courts to constantly navigate the fine line between upholding the rule of law and addressing the practical complexities of governance and development.

References

  1. Sunny Abraham (S) v. Union Of India And Another (S), 2021 SCC OnLine SC 1281.
  2. Life Insurance Corporation Of India v. Escorts Ltd. And Others, (1986) 1 SCC 264.
  3. Harakchand Misirimal Solanki v. Collector, 2008 SCC OnLine Bom 1083.
  4. MR. IMRAN SULEMAN QURESHI v. MUNICIPAL CORPORATION OF GREATER MUMBAI AND 5 ORS., 2022 SCC OnLine Bom 728.
  5. Alembic Pharmaceuticals Ltd. v. Rohit Prajapati And Others, 2020 SCC OnLine SC 347.
  6. D. SWAMY v. KARNATAKA STATE POLLUTION CONTROL BOARD, 2022 SCC OnLine SC 1278.
  7. Electrosteel Steels Limited Petitioner(S) v. Union Of India And Others (S), 2021 SCC OnLine SC 1247.
  8. Lafarge Umiam Mining (P) Ltd. v. Union Of India, (2011) 7 SCC 338. (Also cited as 2011 SCC 12 483 in provided material, but (2011) 7 SCC 338 is a common citation for this case).
  9. Common Cause v. Union Of India And Others, (2017) 9 SCC 499.
  10. Keystone Realtors Private Limited v. Anil V. Tharthare And Others, (2020) 2 SCC 66.
  11. Esha Ekta Apartments Cooperative Housing Society Limited And Others v. Municipal Corporation Of Mumbai And Others, (2013) 5 SCC 357.
  12. Vivek Srivastava v. Union Of India And Others, 2005 SCC OnLine All 1555.
  13. Fattechand Murlidhar Shop, Sitabuldi, Nagpur v. Shrikrishna Tejmalji Chandak, 1984 SCC OnLine Bom 123.
  14. Surat Borough Municipality v. Ishvarlal Manchharam Bachkaniwala, 1972 GLR 946.
  15. Himmatbhai Amrabhai Sagathiya Petitioner(S) v. State Of Gujarat Through Principal Secretary (Appeals) & 3 (S), 2010 SCC OnLine Guj 6492.
  16. Hitesh Ramanlal Patel v. Sentinel Properties Pvt. Ltd. And Others, 2019 SCC OnLine Guj 7511.
  17. Tarlok Chander v. The State Of Punjab And Others, 1995 SCC OnLine P&H 953.
  18. Jamshedpur Cements Ltd. (In Liquidation), In Re v. Hi-Tech Chemicals P. Ltd., 2011 SCC OnLine Cal 1115.